Opinion
File No. CK16-01458 Petition No. 16-07356
03-07-2018
J---- W. M------- Petitioner, v. P------- M------- Respondent.
CUSTODY ORDER
In the Interest of: J---- M------- III (d.o.b. --/--/----)
Before the HONORABLE LOUANN VARI, JUDGE of the Family Court of the State of Delaware:
Pending before the Court is a Petition for Custody filed by J---- M------- ("Father") against P------- M------- ("Mother") concerning their son, J---- M------- III ("J----"), born October 24, 2008. Hearings were held on the Petition on August 29, 2017; September 22, 2017; and October 11, 2017. Mother appeared with counsel Renee Duval, Esquire, and Father appeared with counsel Sean M. Lynn, Esquire. Mother and Father both testified, as did a number of witnesses. The Court interviewed J---- on August 31, 2017. At the conclusion of the hearings the Court reserved its decision and now resolves the Petition by the entry of this Order.
PROCEDURAL BACKGROUND
Mother and Father were married in Delaware on March 8, 2008. They separated on March 10, 2016 and were divorced by final decree on December 8, 2016. J---- is their only child together. He is now nine-years-old.
Mother and Father are concurrently litigating ancillary matters related to their divorce. This decision relates solely to custody of J----.
On March 11, 2016, Father filed an emergency Petition for Order of Protection from Abuse ("PFA") and an emergency Petition for Custody of J----. The same day the Court entered a temporary Ex Parte PFA Order awarding Father temporary custody and placement of J----, and exclusive use of the marital residence. Several days later Father filed a motion to voluntarily dismiss his PFA Petition, and on April 24, 2016 the Ex Parte PFA order was vacated. Mother then filed a Motion for Increased Visitation on May 26, 2016.
Mother's motion was denied as moot after cross-PFA orders established a temporary visitation and contact schedule on July 5, 2016.
Father then filed another emergency PFA Petition against Mother on June 2, 2016. The Court again entered a temporary Ex Parte PFA Order awarding Father temporary custody of J---- and exclusive use of the marital residence. Mother filed her own PFA Petition against Father on June 7, 2016, and on July 5, 2016 the Court entered one-year, cross-PFA orders between Mother and Father. The PFA Orders were entered with Mother and Father's consent and without a finding of abuse by either. They included temporary provisions which maintained their joint legal custody of J----, and provided J---- would live with Father and visit with Mother every other weekend.
On January 23, 2017 Mother filed another Motion for Increased Visitation. A case management conference was held on March 16, 2017 on Mother's Motion and on Father's underlying Petition for Custody. On April 24, 2017 the Court granted Mother's Motion and modified the visitation schedule to include shared placement on a week-on, week-off basis during the summer break, and awarded Mother increased telephone contact with J----. The April 24, 2017 Order continues to control J----'s custody and placement arrangements.
A Scheduling Order was issued on April 26, 2017, and as noted, hearings on Father's Petition for Custody were held on August 29, 2017, September 22, 2017, and October 11, 2017. Both Mother and Father testified. Father also called the following witnesses: C------- M-------, age 16 ("C-------") and H---- M-------, age 12 ("H----"), Father's daughters from his first marriage and J----'s half-sisters; N----- T----- ("N-----"), Mother's adult daughter from her first marriage and J----'s half-sister; D--- R---, Father's first wife and C------- and H----'s mother; his mother, P------- M------- ("Paternal Grandmother"); and John Vander Ven, Jr., LPCMH, J----'s counselor. Mother presented testimony from her mother, T------ T----- ("Maternal Grandmother"); M------- M-------, a family friend and neighbor during the marriage; and Ann Altemus, Mother's domestic violence counselor. At the parties' request, the Court also interviewed J---- on August 31, 2017.
Ms. Altemus testified by telephone at the September 22, 2017 hearing, and Mr. Vander Ven testified by telephone at the October 11, 2017 hearing.
FINDINGS OF FACT
Mother and Father were married for approximately eight years. During their marriage they lived together in Father's pre-marital property in Smyrna, Delaware, with N-----, H----, C-------, and J----. Father has worked as a lineman for Delmarva Power since 2001. Mother worked for ten years as a dental assistant before she married Father; during their marriage Mother worked several hours a week at the YMCA for about a year. The parties agree that during the marriage Mother was primarily a stay-at-home-mother and caregiver to the children; Father was the primary wage earner and worked a steady schedule and significant overtime each week. There is little agreement between the parties about their home life beyond these basic facts.
Mother and Father's alcohol use
Mother and Father began experiencing relationship problems about four years into their marriage. The Court heard substantial testimony regarding both Mother's and Father's alcohol use, and both parties agree that their excessive alcohol consumption contributed to the breakdown of their marriage. Father believes he and Mother spent over $3,000 in a single year on beer. Their drinking would lead to mutually belligerent behavior. They often argued when drinking, and their arguments sometimes turned violent. Father sometimes locked Mother out of the house when she was intoxicated. Father punched holes in the walls and shattered a mirror during an argument with Mother; he once broke the car window where Mother went during an argument.
In the final two years before their separation, the police were called to the home by Mother, Father or both at least six times. Other incidents involved neighbors calling in noise complaints for loud music coming from Mother's and Father's home. On April 8, 2014, about two years before he and Mother separated, Father was charged with disorderly conduct and resisting arrest after an incident at his home after he and Mother and been drinking. Father was tased by police when he became increasingly argumentative and violent. Mother and Father agree none of the children, including J----, were awake or witnessed the incident.
Mother and Father often drank, and argued, in the hot tub in their backyard.
On June 30, 2014, police were again dispatched to the home after a neighbor reported hearing screams and violent arguing. Mother and Father had been drinking around their backyard campfire with company, including their neighbor Ms. M-------, and Mother's friends from Michigan who were visiting. C------- was also there with Ms. M-------'s minor daughter. Mother and C------- got into a heated argument about the music and Mother went inside. Father followed Mother into the home and they began arguing. Father explained Mother was emptying the dishwasher, turned suddenly and stabbed him in the right cheek with a fork. Mother denies this and insists Father must have stabbed himself. No one other than Mother and Father were present in the kitchen. However, the Court heard substantial and credible testimony from several witnesses who were present in the home during this incident who did not believe that Father stabbed himself with the fork. Mother's account of the incident is also inconsistent with statements she previously made to N-----, when Mother said she blacked out and could not remember the incident. Mother also told Ms. M------- she blacked out and could not remember what happened. The weight of the evidence suggests Father did not injure himself, and the Court finds more credible that Mother indeed stabbed him with a fork. Mother was taken into police custody the same evening and charged with Third Degree Assault.
Substance abuse and domestic violence
Mother has received inpatient treatment for substance abuse at least twice. From March 22, 2016 to April 5, 2016 Mother was admitted to a treatment program at Bowling Green. Mother again received inpatient treatment from Meadowwood Hospital in September 2016. Mother explained she did not seek treatment because she believed she abused alcohol. Rather, according to Mother, Father's unrelenting violence caused her to drink excessively and she entered treatment to help her cope with her anxiety and Post Traumatic Stress Disorder. According to Mother, in addition to damaging property, Father has grabbed her by her hair and banged her head against walls. None of the witnesses who testified ever saw Father physically assault Mother, or signs that he done so, including the children who lived in the home. Father acknowledges he "took [Mother] to the ground" to "disarm" her the night she stabbed him with a fork. Otherwise, Father denies ever physically abusing Mother, and there is no evidence he controlled or mistreated her in other ways—beyond, of course, their alcohol-fueled arguments.
Ms. R--- credibly testified that Father had never been abusive during their marriage, physically or otherwise. She described Father as "passive" and finds it unlikely he behaved as Mother described. Ms. M-------, Mother's friend and a neighbor, testified Mother once told her that Father had hit her, Mother, on the head; when Ms. M------- asked Mother if she could check Mother's head to make sure Mother did not require medical attention, Mother refused to allow Ms. M------- to see or help her. Mother did not report abuse at Father's hands to the police in the many times they appeared at her home. She did not seek protection from abuse until Father filed a second PFA petition against her. Mother also plainly used, and misused, alcohol before she met Father. She was convicted of underage consumption of alcohol in February 1990; possession or consumption of alcohol by a person prohibited in January 1991; and her driving privileges were revoked in February 1991 after a second conviction for possession or consumption of alcohol by a person prohibited.
C-------, H----, and N-----'s testimony paints a more complex family picture than Mother suggests. They confirmed what Father acknowledges: he drank and was sometimes drunk. However, the girls also explained that Mother drank more and drank more frequently than Father. C------- and H---- would retrieve beers from the refrigerator for Mother. Mother's drinking also led to conflicts between Mother and the girls. Mother's drinking steadily grew more frequent; Father's began to slow by the time he and Mother separated. Father began receiving text messages at work from Mother indicating she was home drinking or was already drunk. This increased to several times a week toward the end of their marriage, sometimes even before noon. Father, C-------, and H---- explained that on those occasions, Father would come home early from work to get J---- off the bus, unpack his school bag and help with his homework, cook dinner, and put J---- to bed, all while Mother continued to drink. C------- and H---- sometimes helped Father care for J----. Father, C-------, H----, N----- and Paternal Grandmother explained Mother tended to withdraw and not participate in the family when she drank.
Ms. R---, H---- and C-------'s mother, also testified her relationship with Mother was cordial before Father and Mother married. Things began to change after they married, and interacting with Mother became "like flipping a switch." Mother began setting rules against allowing Ms. R--- to come to the front door or exit her vehicle when she arrived at the home to pick up C------- and H----. Their relationship chilled further after J---- was born. Ms. R--- credibly testified that Mother would sometimes yell insults at Ms. R--- while she was waiting for the girls to come out. When Ms. R--- and Father were involved in litigation over their own divorce-related matters, Mother told Ms. R--- that if she, Ms. R---, tried to take the children (C------- and H----), Mother would file criminal charges. On several occasions Ms. R--- received telephone calls from Mother in the middle of the night falsely accusing her of reporting noise complaints against Mother to the police—even though Ms. R--- lived across town from Mother.
C------- and H---- also both credibly testified about Mother's mistreatment of them. Mother has called H---- "fat" and teased her about her body weight. Mother told C------- "you are a bitch just like your mother." On one occasion C------- and Mother began to argue and Mother pulled C------- out of bed by her hair. C------- moved in with her own mother, Ms. R---, because she no longer wanted to live with Mother. Both C------- and H---- have received counseling to address Mother's treatment of them.
Finally, Mother's relationship with N----- raises other doubts about the role of domestic violence in Mother's alcohol use. N----- moved back to Father's home after her graduation from college and stayed briefly on her own in the family's recreational vehicle; she now has her own apartment in Wilmington. N----- herself obtained a PFA Order against Mother around the time Mother and Father separated because Mother sent her "hundreds of texts and calls" and showed up unannounced at N-----'s apartment several times. Mother's conduct continued for months, including after N----- asked Mother to stop, and was often alcohol related. Mother's words were sometimes slurred and N----- believes Mother was intoxicated. While N----- did not smell alcohol on Mother when Mother showed up unannounced at her home, Mother again would slur her words—and act belligerently toward her daughter. Mother also violated N-----'s PFA Order: J---- called N-----, who heard Mother in the background telling J---- what to say. N-----'s PFA against Mother has since expired. Their relationship remains strained.
Additional findings are included in the Discussion, below.
DISCUSSION
The standard for determining an initial petition for custody is governed by Section 722 of Title 13 of the Delaware Code. It requires the Court apply the "best interests of the child" standard by considering "all relevant factors," including those specifically enumerated in the Section. These factors are considered as follows:
DEL. CODE ANN. tit. 13, § 722 (2009 & supp. 2016).
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements.
Mother and Father agree that joint legal custody is in J----'s best interests. They disagree over J----'s placement and visitation schedule. Father wants J---- to continue to live primarily with him and have visitation with Mother every other weekend. Father agrees he and Mother should share holidays and J----'s summer school vacation schedule. Father also requests that Mother's visits with J---- be conditioned on Mother seeking treatment for alcohol abuse and for her mental health. Father acknowledges J---- wants to spend more time with Mother and believes it is important for J---- to maintain and develop his relationship with her, but contends Mother is not in a position to provide J---- the stable and adequate care he needs. Among others, Father specifically points to Mother's alcohol abuse, J----'s life-long bond with his siblings N-----, C-------, and H----, and Mother's behavior toward himself, N-----, C------- and H---- as evidence that it is not in J----'s best interests to live primarily with Mother. Further, Father argues maintaining primary placement with him will allow J---- to continue attending school without interruption.
Mother wants J---- placed in her primary care and have a similar visitation schedule with Father. Mother believes she is better suited to serve as primary caregiver for J---- because until the marital separation, she had always done so. Mother lives with her parents and they will be able to help care for J----. Mother also contends that although she lives in Claymont, Delaware, it takes less time to get J---- to school if she drives him than if he takes the school bus from Father's, permitting J---- to rest longer in the morning. While it is Mother's intention to keep J---- enrolled in Providence Creek Academy, his current school, for as long as practicable, she would enroll him in a school closer to her home if the daily commute became too difficult. Mother has also expressed interest in finding a new home for herself and J---- closer to Father's home so J---- could continue to attend Providence Creek.
Neither Mother nor Father's wishes about J----'s custody and living arrangements are unreasonable. This factor explains the litigation but does not help resolve it.
(2) The wishes of the child as to his or her custody and residential arrangements.
The Court interviewed J---- on August 31, 2017. J---- was very polite, comfortable and eager to talk. While J---- shared talking about Mother and Father sometimes makes him feel sad, in general, he was in a positive mood, and remained engaged and talkative throughout the interview.
J---- expressed a strong, fixed preference to live with Mother. However, the Court is concerned Mother's statements about Father have influenced J----'s responses and his overall wishes. J---- indicated that the entire time he lived with Mother and Father he never saw Mother drinking beer, but he "knew" Father was drinking beer. J---- used the word "manipulate" to mean "to control minds" and claimed Father was manipulating Mother, N-----, and H----. Mother told J---- that J----'s older brother Andrew died because Father did not watch him appropriately. J---- also said Mother told him Father was bad to Mother because Father had taken all her money in the divorce. At several points throughout the interview J---- said "Mommy never lies." J---- also said "H----, C-------, N----- don't tell the truth, but Mom always tells the truth." Mr. Vander Ven has also heard J---- make similar statements, including "Mom never lies" and "Mom would never lie to me."
Mr. Vander Ven has been counseling J---- since May 2016. He persuasively testified that J----'s responses, reactions, and sentiments, including any anxiety J---- may be experiencing, may have been induced or exacerbated by conversations Mother had with J----. According to Mr. Vander Ven, J---- most likely would not have reached the same conclusions based entirely on his own personal interaction and experiences with Father and Mother. Mr. Vander Ven has discussed with Mother how her statements could damage J----'s relationship with Father, and how it could be perceived that Mother was trying to make Father out to seem like a bad person to get J---- to "be on her side." While Mr. Vander Ven does not believe Mother has intentionally tried to harm J----'s relationship with Father, he does believe some of J----'s statements have been the result of Mother's urging. J----'s statement, for example, that he never saw Mother drinking, is highly questionable.
The Court discounts J----'s wishes more than it might otherwise given his intelligence and age. Mr. Vander Ven's testimony and insights confirm the Court's own observations that J---- has been inappropriately influenced by Mother. The Court is satisfied Mother has shared information with J---- she should not have (about her and Father's divorce and the death of Father's other son, for example) and has caused her son to blame Father for Mother's own circumstances—an emotionally precarious predicament for a child of J----'s age.
While the Court is satisfied J---- should continue to have frequent and meaningful contact with his mother, reversing the existing arrangements risks Father's role in J----'s life.
(3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband or wife with a parent of the child, any other residents of the household or persons who may significantly affect the child's best interest.
There are several individuals with whom J---- lives and shares regular contact; the Court discusses them each in turn:
Mother : At this time, Mother has joint custody of J---- and visitation every-other weekend, with increased summer visitation, and regular weekly telephone contact. The Court heard substantial testimony regarding Mother's interaction and relationship with J----, and how it varies depending on whether Mother has been drinking. It is undisputed that Mother loves her son, and that Mother was J----'s primary caregiver in the beginning of J----'s life, before the separation, when Father regularly worked long hours. Mother was involved with J----'s school activities, and enrolled J---- in community sports and took him to practices and games, and arranged J---- doctor's appointments. The evidence demonstrates that Mother began drinking more frequently when J---- started school. When Mother was not drinking, she was much more involved with J----. Mother was frequently intoxicated, sometimes for long periods of time during the afternoons, evenings, and weekends, during which she largely ignored J---- and neglected her parental duties. The Court does not doubt J---- and Mother nonetheless have a strong emotional bond and connection, and it would be harmful to J---- to disrupt it.
Father : At this time, Father shares joint custody of J---- with Mother, with Father having primary residential placement. It is undisputed that Mother was J----'s primary caregiver for the early part of J----'s life, while Father worked long hours outside the home. This changed in the time leading up to the separation, and Father now acts as primary caregiver. Father altered his work schedule and works less overtime so he can take care of J----. Father gets J---- ready for school in the morning, prepares his meals, helps him complete his homework, and puts him to bed at night. Father sometimes has help from C------- and H----; for example, they often help cook meals for the family, and C------- usually watches J---- for about 30 minutes each day after he gets off the school bus, before Father arrives home from work. Father takes J---- fishing and to his cub scout meetings. Ms. R--- testified Father has always been a great parent to C------- and H----, and she believes he is the same with J----. She also confirmed she saw Father playing games with J---- and engaging in other activities when she arrived at Father's home to pick up C------- and H---- for her visitation.
C------- , H---- and N----- : J---- loves his sisters and they clearly love him. While the children sometimes argue, their disagreements are typical to siblings, and, especially in light of their age difference, J---- shares a strong bond with his half-sisters. C------- continues to live with Father and sees J---- every day; she helps get J---- off the school bus and takes care of him before and after school while Father is still at work. H---- continues to live with Ms. R---, but regularly visits Father and she and J---- often play together. As noted, N----- has a PFA Order against Mother and only sees J---- when she visits with Father.
Grandmothers : Maternal Grandmother testified at the September 22, 2017 hearing. She has frequent contact with Mother, and visits regularly at Mother and Father's home for holidays and other special events, attends the children's games and school activities, and considers them all her grandchildren. Paternal Grandmother lives in Seaford, Delaware, for three years and sees J----, C-------, and H---- several times throughout the year. The children visit her home during the holidays and for a week each year over summer break. The evidence establishes J----'s relationship with his maternal grandparents is particularly strong.
In all, it is clear J---- has and is largely still benefitting from all the relationships he enjoyed when Mother and Father lived together—albeit in different configurations. The Court remains concerned that reducing J----'s time with Father will also lead to reduced time with other important relationships as well, given the disharmony between Mother and J----'s sisters.
(4) The child's adjustment to his or her home, school and community.
As mentioned above, until Mother' visitation began last year, J---- has always lived in Father's home in Smyrna, Delaware, and has always lived with his half-sisters N-----, C-------, and H----. J---- has generally adjusted well to the changes in his home following the separation and divorce. While Father has taken on the role of J----'s primary caregiver in the home, C------- and H---- sometimes cook dinner, babysit, and help get J---- ready for school, chores and responsibilities that are not unreasonable given their ages. Before the separation, J---- played flag football and baseball, but he did not play last year. J---- is involved in cub scouts.
N----- attended college from 2010 to 2014 and now has her own apartment in Wilmington. She continues to visit her stepfather and sees J---- when she does. --------
J---- has been seeing Mr. Vander Ven, LPCMH, from Mental Edge Counseling since May 2016. J---- had adjustment disorder with depressive symptoms from trauma associated with the separation which Mr. Vander Ven indicated were completely natural in light of the circumstances. J----' sessions were originally weekly, but were reduced to biweekly in early 2017, and again to about once a month over the summer of 2017, because Mother and Father both agR--- J----'s symptoms had reduced.
Mr. Vander Ven believes J---- has since made significant improvements and has adjusted well to his new life in his separate homes. He also believes J---- should not be uprooted from his school, and believes doing so might jeopardize the stability and the progress J---- has made in adjusting to his new reality after the separation. While Mother currently drives J---- to school during her visitation, the Court questions whether or to what extent Mother would be able to continue transporting J---- to and from his school nearly an hour away twice a day, every day that J---- has school.
(5) The mental and physical health of all individuals involved.
Father suffers from cervical degenerative disc disease, and had had surgery on his spine. Father has recovered, and his injuries do not impair his ability to care for J----. Father has no other noteworthy physical or mental health concerns. J---- is also physically healthy, and his medical and dental care are up-to-date. Father has been taking J---- to the doctor and dentist since he and Mother separated. Mother was diagnosed with chronic obstructive pulmonary disease ("COPD") in 2014, but has not had problems associated with her COPD since the separation. Mother had also undergone two minor surgeries to remove skin cancer spots from her nose. As described below, Mother has been to both in-patient and out-patient treatment facilities for alcohol abuse, including Meadowwood and Bowling Green.
Mother and Father were both required to be evaluated for domestic violence interventions as part of the cross-PFA Orders between them. Father completed these interventions. Mother has been receiving interventions as a domestic violence survivor from Ann Altemus. Mother also began seeing a psychiatrist, Dr. Donohue, in April 2016, and her appointments are now bi-monthly. Dr. Donohue confirmed Mother's depression and also diagnosed her with Post Traumatic Stress Disorder and anxiety. Mother is prescribed several medications; none impair her ability to care for J----. The Court does not dispute the accuracy of Mother's diagnoses. The evidence, however, simply does not support Mother entirely self-reported trauma at Father's hands.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under section 701 of this title.
Fortunately, Mother and Father have largely complied with the series of interim and temporary arrangements the Court has established concerning J----'s care. Mother is not working and has applied for disability benefits related to her PTSD; she has not provided Father any financial support for J---- since the marital separation.
(7) Evidence of domestic violence as provided for in chapter 7a of this title.
Under the terms of the July 2016 cross-PFA order against them, Mother and Father were both ordered to undergo a domestic violence evaluation. Father was evaluated at Turning Point, and was told he was not required to attend any interventions; he completed a 25-week intervention program anyway, and persuasively testified he benefited from the program. Mother was also ordered to undergo a domestic violence evaluation, but objected to being evaluated at Turning Point. Rather, Mother was evaluated by Ann Altemus, LCSW, who Mother had been seeing for counseling since May 2016. Ms. Altemus administered Mother a domestic violence evaluation and determined victim's services were more appropriate for her. As noted, Mother was charged with Third Degree Assault against Father following the June 30, 2016 domestic incident when Father was stabbed in the cheek with a fork.
The Court understands many victims of domestic violence develop mental health problems as a result of the abuse they suffer, and that for victims, alcohol is sometimes used as a coping mechanism. The evidence, however, does not establish that Mother was a victim of sustained, systematic or even significant episodic abuse by Father. At most, Mother showed that Father damaged property during some of their arguments. This is concerning, inappropriate and had it occurred independent of the parties' drinking and mutual belligerence, would weigh against Father's Petition. In all, however, the Court is satisfied Mother was as least as abusive as Father, including assaulting him, emotionally and physically mistreating H---- and C-------, and harassing N-----. Put another way, the evidence establishes that alcohol dependency, not domestic violence, is the biggest problem facing Mother and Father's family.
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
A review of Delaware's criminal justice records reveals that both parties have several minor traffic related offenses. Father was charged with Disorderly Conduct, Menancing and Resisting Arrest in 2014, during the incident in which the police tased him after a noise complaint to the home. These charges were dismissed. Mother was charged with Third Degree Assault as a result of the incident where she stabbed Father with a fork. The charge was dismissed when Father declined to have it prosecuted. She was also charged with Criminal Contempt of a Domestic Violence Protective Order in March 2016, presumably for her contact with N-----. This charge was dismissed without prejudice. As noted above, Mother had three alcohol related convictions in the early 1990s. Father also has alcohol-related convictions, in August 2012 for being drunk on highway, and 1996, when he completed the first offender program after being charged with driving under the influence. In all, Mother and Father's criminal history corroborates and confirms much of the other evidence about their relationship.
CONCLUSION
The Court has weighed these factors, and considers number 3 (J----'s family relationships), number 4 (J----'s adjustment to his home and school) and number 5 (the mental health of all involved) to be most important to determining his custody and care relationships. Mother and Father agree they are able to continue sharing joint legal custody of their son, and the evidence confirms they are likely able to safely navigate these responsibilities. Mother's role as J----'s primary caregiver for the first several years of his life weighs in favor of her request to have J---- placed in her primary care. Unfortunately, the Court is concerned that Mother's mental health needs and substance abuse have clouded her ability to separate J----'s needs from her own. It is also satisfied that these matters are not the result of abuse of Mother by Father. The Court is largely convinced that Father will honor Mother's role in J----'s life: he has, for the most part, done so since the separation. On the other hand, Mr. Vander Ven's sessions and the Court's interview with J---- confirms Mother has, likely unintentionally, attempted to sway J---- to her point of view rather than honoring his own. J---- has now adjusted to the separation. His school remains an important part of his life, as does his relationship with his siblings. These are all better maintained by leaving him in Father's primary care with significant and meaningful time and contact with Mother as established in the Interim Order entered nearly a year ago.
ORDER
For these reasons,
IT IS HEREBY ORDERED that the legal care and custody of J---- M-------, III, born October 24, 2008, is awarded jointly unto P------- M------- ("Mother") and J---- M-------, Jr., ("Father") with primary placement being with Father.
IT IS FURTHER ORDERED that Mother shall have visitation and contact as further specified in the attached Visitation Order.
IT IS FURTHER ORDERED that Mother and Father may amend this agreement as they mutually agree. Nothing in this Order prevents Mother and Father agreeing to changes in placement and visitation so long as they mutually agree to those changes.
IT IS SO ORDERED, this 7th day of March, 2018.
__________
//s// Judge Louann Vari LV:mg
cc: counsel Date distributed: __________
VISITATION ORDER
In the Interest of: J---- M------- III (d.o.b. 10/24/2008)
Before the HONORABLE LOUANN VARI, JUDGE of the Family Court of the State of Delaware:
IT IS HEREBY ORDERED that the legal care and custody of J---- M-------, III, born October 24, 2008, is awarded jointly unto P------- M------- ("Mother") and J---- M-------, Jr., ("Father") with primary placement being with Father.
IT IS FURTHER ORDERED that Mother shall have visitation and contact with J---- every other weekend from Friday afternoon until Monday morning, as follows:
a. Mother shall pick J---- up from school at the end of the school day every other Friday and take him to school the following Monday morning at the beginning of the school day.
b. On any Friday exchange day that school is not in session, Mother's contact with J---- shall begin at 6 p.m.
c. On any Monday exchange day that school is not in session, Mother's contact with J---- shall end at 6 p.m.
d. Exchanges shall occur at a midpoint between Mother and Father's homes.
e. If the parties are not able to agree on a midpoint for exchanges, exchanges shall occur at the Wawa at 690 Middletown Road, Middletown, Delaware.
IT IS FURTHER ORDERED that except for any shared summer placement, Mother shall have telephone contact with J---- at 7:00 p.m. every Tuesday and Wednesday, and every Friday and Saturday evening he is in Father's care. Neither parent shall interfere in J----'s reasonable contact with the other parent through electronic devices.
IT IS FURTHER ORDERED that Mother shall have additional visitation and contact with J---- as follows: 1. Holidays: Father shall have J---- on the holidays in Column 1 in odd-numbered years and the holidays in Column 2 in the even-numbered years. Mother shall have J---- on the holidays in Column 1 in the even-numbered years and the holidays in Column 2 in odd-numbered years:
| Column 1 | Column 2 |
|---|---|
| Easter or other religious holiday | Memorial Day |
| Fourth of July | Labor Day |
| Halloween | Thanksgiving Day |
| Christmas Day | Christmas Eve |
With the exception of Christmas and Halloween contact, holiday contact shall be from 9 a.m. until 6 p.m. the day of the holiday. Halloween contact shall begin at 5 p.m. and end at 8 p.m. on Halloween. Christmas Eve contact shall begin at 6 p.m. on December 24th and end at noon on December 25th. Christmas Day contact shall begin at noon on December 25th and end at 6 p.m. on December 26th. When a holiday falls on a Monday immediately following a contact weekend, the parent that had contact for the weekend shall be entitled to keep J---- continuously from 6 p.m. Friday until 6 p.m. Monday.2. Mother's/Father's Day : On Mother's Day and Father's Day, no matter whose turn for contact, J---- shall be with the parent whose holiday is being celebrated from 9 a.m. until 6 p.m. 3. School Breaks (Winter and Spring) : Winter and Spring Breaks shall be shared equally between the parents by dividing the breaks equally or rotating the breaks. 4. Summer Vacation : Mother and Father shall share J----'s placement on a week-on, week-off schedule during J----'s summer school vacation.
a. The summer shared placement arrangement shall begin the first Friday that Mother has visitation with J---- after the end of the regular school year.5. School work : Parents shall provide time for J---- to study and complete homework assignments, even if the completion of work interferes with the parent's plans for J----. Both parents are responsible for providing all of the school assignments and books to the other parent. Summer school which is necessary for a child must be attended, regardless of which parent has the child during the summer school period. 6. Extracurricular activities : Regardless of where J---- is living, his continued participation in extracurricular activities, school related or otherwise, should not be interrupted. The parent with whom J---- is staying shall be responsible for providing transportation to activities scheduled during contact with that parent. Each parent shall provide the other parent with notice of all extracurricular activities, complete with schedules and the name, address and telephone number of the activity leader, if available. 7. Late pick-up : Both parents shall have J---- ready for pick-up at the start of all contact periods. J---- and the parent have no duty to wait for the other parent to arrive for contact more than thirty (30) minutes, unless notified. The parent who arrives more than thirty (30) minutes late without prior notification for a particular contact, forfeits that contact, unless the other parent agrees otherwise. 8. Drop-off : Neither parent shall return J---- early from contact unless the parents agree to a different drop-off time in advance. The parent or other adult well-known to J---- must be present when J---- is returned from contact. 9. Canceling contact : Except in emergency situations, parents must give one another at least twenty-four (24) hours advance notice when canceling a contact period. 10. Medical treatment and emergencies : If J---- becomes seriously ill or injured, each parent shall notify the other parent as soon as practicable. If J---- becomes ill or injured during contact, the parent shall contact the other parent to secure treatment unless the situation is a medical emergency. 11. Communication : Both parents shall be entitled to reasonable communication with the child while the child is in the other parents' care (including but not limited to telephone, e-mail, mail and text messaging). Neither parent shall interfere with the communication between J---- and the other parent. Long distance calls from an out-of-town parent shall be at that parent's expense. 12. Transportation : Unless otherwise ordered or mutually agR---, parents shall have shared responsibility for transportation of J---- to and from their home for contact periods and may use another adult well-known to J---- for picking up or dropping off J---- when necessary. Any person transporting J---- shall not be under the influence of alcohol or drugs, and must be a licensed, insured driver. All child restraint and seat belt laws must be observed by the driver. 13. Relocation : Prior to a parent relocating their residence, consideration shall be given to the effect the relocation may have on the existing contact schedule. If the relocation may result in a change in the child's school, travel time to school or extracurricular activities or otherwise may adversely affect the child's best interest, the parent choosing to relocate shall obtain written approval from the other parent or a Court Order prior to relocating. 14. Notice of change of address : Both parents shall give written notice to the other parent immediately upon any impending change of address and/or phone number. The written notice must include the new mailing address and phone number (in the event the mailing address is a Post Office Box, the written notice must include a physical address and/or directions to the new residence), unless a restrictive order has been obtained from the Court. A copy of the notice shall also be provided to the Family Court in the appropriate county.
b. Summer exchanges shall occur every Friday at 6 p.m.
IT IS SO ORDERED this 7th day of March, 2018.
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//s//Judge Louann Vari